CONVERSION AGREEMENT
CONVERSION AGREEMENT dated as
of January __, 2010 (this “Agreement”) among InovaChem, Inc., a Delaware
corporation (“InovaChem”), XxXxx Mobility, Inc., a Delaware corporation
(“XxXxx”), and Four M International, Inc. (the “Holder”).
RECITALS
WHEREAS, as of the date hereof, XxXxx
owes the Holder an aggregate of $57,938, (the “Debt”); and
WHEREAS, the Holder desires that XxXxx
exchange all his Debt for 386,250 shares of common stock of InovaChem
simultaneous with the reverse merger (the “Reverse Merger”) of InovaChem and
XxXxx, and said parties have agreed to effectuate such exchange upon the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the
premises and the mutual representations, warranties, covenants, agreements and
undertakings contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
ARTICLE
I
EXCHANGE
Section
1.1 Exchange. Upon
the terms and subject to the conditions set forth in this Agreement, (i)
simultaneous with the execution and delivery of this Agreement, the Holder shall
deliver to XxXxx the original promissory note evidencing the Debt and (ii)
within ten days after the closing of the Reverse Merger, InovaChem shall deliver
to the Holder stock certificates representing 386,250 shares of common stock of
InovaChem (the “Common Stock”). It is the intention of the parties that such
exchange is a private transaction exempt from the registration requirements of
the Securities Act of 1933, as amended (the “Securities Act”). The ratio of such
exchange is based on $0.15 per share of Common Stock.
Section
1.2 Restricted
Securities. The Common Stock being issued to the
Holder hereunder are duly and validly issued, fully paid and non-assessable, and
will be free of any liens, claims or encumbrances and restrictions on transfer
other than the fact that such shares are “restricted securities” as such term is
defined under the Securities Act. Accordingly, the Common Stock received by the
Holder may only be sold or transferred pursuant to an effective registration
statement or in accordance with an exemption from registration under the
Securities Act.
Section
1.3 Legend. The
certificates evidencing the Common Stock shall contain a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such shares):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY OTHER APPLICABLE
SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION OR THERE IS AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER, THAT AN EXEMPTION THEREFROM IS AVAILABLE AND
THAT SUCH DISPOSITION IS IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE HOLDER
The Holder hereby represents and
warrants to XxXxx and InovaChem the following:
Section
2.1 Ownership of the
Debt. The Holder is the sole owner of the Debt and has
good and marketable title to such Debt, free and clear of any title defect,
objection, security interest, pledge, encumbrance, lien, charge, claim, option,
preferential arrangement or restriction of any kind, including, but not limited
to, any restriction on the transfer or other exercise of any attributes of
ownership (collectively, “Liens”). Neither the Holder nor his
affiliates has any interest, directly or indirectly, in any other equity in
XxXxx or InovaChem or its respective affiliates, or has any other direct or
indirect interest in any tangible or intangible property of XxXxx or InovaChem,
or has any direct or indirect outstanding indebtedness to or from either XxXxx
or InovaChem, or related, directly or indirectly, to its respective assets,
other than as set forth on Schedule A annexed
hereto. Upon consummation of the transactions contemplated by this
Agreement, the Holder shall have no direct or indirect interest in either XxXxx
or InovaChem, other than as expressly provided for herein.
Section
2.2 Authority. The
Holder has the absolute and unrestricted right, power and authority to execute
and deliver this Agreement and all documents and instruments specified herein,
to carry out his obligations hereunder and to consummate the transactions
contemplated hereby. If the Holder is an entity, the person executing this
Agreement has been duly authorized by the Holder to execute and deliver this
Agreement on behalf of such Holder. This Agreement has been duly
executed and delivered by the Holder and, assuming due authorization, execution
and delivery by the other parties hereto, this Agreement constitutes a legal,
valid and binding obligation of the Holder, enforceable against him in
accordance with its terms.
2
Section
2.3 Approval of Transaction; No
Conflict. The execution and delivery of this Agreement by the
Holder does not, and the performance of this Agreement by the Holder will not,
require any consent, approval, authorization or other action by, or filing with
or notification to, any person, entity, governmental authority or regulatory
authority, other than the possible filing by the Holder of a Form 3 and a
Schedule 13D with the Securities and Exchange Commission (the
“SEC”). Furthermore, the execution, delivery and performance of this
Agreement by the Holder does not and will not (x) conflict with or violate any
agreement, law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award to which the Holder is a party or by which any of his
assets are bound or (y) result in the creation or imposition of any Lien on the
Debt. If Holder is an entity, the execution, delivery and performance of this
Agreement by the Holder does not and will not violate or conflict with any
provision of the Articles of Incorporation or By-Laws or other organizational
documentation of the Holder
Section
2.4 Investment
Intent. The Holder is an “accredited investor”, as that
term is defined in Regulation D under the Securities Act. The Holder
acknowledges that he is able to evaluate and has such knowledge and experience
in financial or business matters that he is capable of evaluating the merits and
risks of accepting the Common Stock in exchange for the Debt. The Holder further
acknowledges that the shares of Common Stock are restricted securities, and as
such cannot be offered or sold unless they are subsequently registered under the
Securities Act and any applicable state securities laws or an exemption
therefrom is available. The Holder is receiving the Common Stock for his own
account and not with a present view towards the public sale or distribution,
other than as set forth in this Agreement. The Holder understands that the
Common Stock is being offered and sold to him in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that XxXxx and InovaChem are is relying upon the truth and
accuracy of, and the Holder’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Holder set forth herein in
order to determine the availability of such exemptions and the eligibility of
the Holder to acquire the Common Stock. The Holder and his advisors, if any,
have been furnished with all materials relating to the business, finances and
operations of both XxXxx and InovaChem, including without limitation, materials
relating to the Reverse Merger and the offer and sale of the Common Stock which
have been requested by the Holder or his advisors. The Holder and his
advisors, if any, have been afforded the opportunity to ask questions of both
XxXxx and InovaChem.
Section
2.5 Counsel. The
Holder represents that he has had the opportunity to review and discuss this
Agreement with counsel of his choosing, that he knows and understands the legal
effect of this Agreement and the transactions contemplated hereby, that he
requested the exchange of his Debt to Common Stock and that he is voluntarily
executing and delivering this Agreement to XxXxx and InovaChem.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF XXXXX AND INOVACHEM
Each of XxXxx and InovaChem, separately
and not severally, hereby represents and warrants to the Holder the
following:
Section
3.1 Authority. The
company is duly organized and validly existing under the laws of the State of
Delaware and has been duly authorized by all necessary and appropriate action to
enter this Agreement and consummate the transactions contemplated
herein. The company has the absolute and unrestricted right, power
and authority to execute and deliver this Agreement and all documents and
instruments specified herein, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the company and, assuming due authorization,
execution and delivery by the Holder, this Agreement constitutes a legal, valid
and binding obligation of the company, enforceable against the company in
accordance with its terms.
3
Section
3.2 Approval of Transaction; No
Conflict. The execution and delivery of this Agreement by the
company does not, and the performance of this Agreement by the company will not,
require any consent, approval, authorization or other action by, or filing with
or notification to, any person, entity, governmental authority or regulatory
authority. The execution, delivery and performance of this Agreement
by the company does not and will not conflict with or violate any agreement,
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award to which the company is a party.
Section
3.3 Shares. InovaChem
represents and warrants that upon issuance, the shares of Common Stock shall be
duly authorized, fully paid and non-assessable.
ARTICLE
IV
INDEMNIFICATION
Section
4.1 Indemnification by the
Holder. Each of XxXxx and InovaChem and their respective successors and
assigns (collectively, the “Company Parties”) shall be indemnified and held
harmless by the Holder from and against any and all damages, losses,
liabilities, taxes (including any deficiencies and penalties and interest
thereon), and costs and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) (collectively, “Damages”) resulting
from any misrepresentation, breach of warranty or nonfulfillment of any covenant
or agreement on the part of the Holder contained in this Agreement and as a
result of the transaction contemplated herein.
Section
4.2 Indemnification by the
companies. The Holder and his affiliates, consultants,
representatives and their respective successors and assigns shall be indemnified
and held harmless by each of XxXxx and InovaChem from and against any and all
Damages resulting from any misrepresentation, breach of warranty or
nonfulfillment of any covenant or agreement on the part of said company
contained in this Agreement and as a result of the transaction contemplated
herein.
Section
4.3 Notice. Each
party hereto agrees to give to the other prompt notice of any claim or action by
a third party or occurrence of any event which may give rise to a claim or
action for indemnification hereunder. The failure to provide such notice shall
not release the indemnifying party from its obligations under this Article IV,
except to the extent that the indemnifying party is materially prejudiced by
such failure.
ARTICLE
V
GENERAL
PROVISIONS
Section
5.1 Entire
Agreement. This Agreement contains, and is intended as, a
complete statement of all of the terms of the arrangements and understandings
between the parties with respect to the matters provided for, and supersedes any
previous agreements and understandings between the parties with respect to those
matters.
4
Section
5.2 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed wholly in such State, without regard to conflict of law
rules applied in such State. EACH OF THE UNDERSIGNED HEREBY WAIVES
FOR ITSELF AND ITS PERMITTED SUCCESSORS AND ASSIGNS THE RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING INSTITUTED IN CONNECTION WITH THIS
AGREEMENT.
Section
5.3 Notices. Any
notice required or given with respect to this Agreement shall be valid and
effective when delivered (i) by registered or U.S. post office stamped certified
mail, (ii) by a nationally recognized overnight air courier, or (iii) by hand,
in all cases to:
If to
XxXxx or InovaChem, to:
InovaChem,
Inc.
c/o NuGen
Mobility, Inc.
00000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
If to the
Holder, to:
Four M
International, Inc.
c/o
Crowell Xxxxxx
000 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Any party
hereto may change such address by notice given at least five (5) days in advance
to the other party in accordance with this Section.
Section
5.4 Binding
Agreement. This Agreement, including without limitation, all
the representations and warranties contained herein, shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
Section
5.5 Amendment. This
Agreement may be amended or modified only by a written instrument executed by
all the parties hereto.
Section
5.6 No
Waiver. The failure of a party at any time or times to require
performance of any provisions hereof shall in no manner be deemed to affect the
party’s right at a later time to enforce the same. No waiver by any
party of the breach of any term contained in this Agreement, whether by conduct
or otherwise, in any one or more instances, shall be deemed to be or construed
as a further or continuing waiver of any such breach or of the breach of any
other term or provision of this Agreement.
Section
5.7 References. The
headings in this Agreement are solely for the convenience of the parties, and
are not intended to and do not limit, construe or modify any of the term and
conditions hereof.
5
Section
5.8 Unenforceability. If
any provision of this Agreement shall be held to be invalid or unenforceable,
such invalidity or unenforceability shall attach only to such provision and only
to the extent such provision shall be held to be invalid or unenforceable and
shall not in any way affect the validity or enforceability of the other
provisions hereof, all of which provisions are hereby declared severable, and
this Agreement shall be carried out as if such invalid or unenforceable
provision or portion thereof was not embodied herein.
Section
5.9 Counterparts. This
Agreement may be executed by facsimile and in counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
Section
5.10 Further
Assurances. The parties hereto will execute and deliver such
further instruments and documents and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this
Agreement.
IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Agreement on the date first written
above.
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INOVACHEM
INC.
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
Chief Financial Officer
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XXXXX
MOBILITY INC.
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
CEO / President
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FOUR
M INTERNATIONAL, INC.
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/s/
Xxxxx Toh
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Xxxxx
Toh
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Four
M International, Inc.
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c/o
Crowell Xxxxxx
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000
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, XX
00000
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